WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
IndyMac Bank, F.S.B. v. Chris Yuan Lin
Case No. D2001-0251
1. The Parties
The Complainant is IndyMac Bank, F.S.B., a savings bank chartered under the laws of the United States of America, having its principal place of business at Pasadena, California, United States of America. The Respondent is Chris Yuan Lin, an individual apparently residing in San Gabriel, California, United States of America.
2. The Domain Names and Registrar
The domain names at issue are: , , and , and those domain names are registered with Network Solutions, Inc. ("NSI"), a registrar based in the State of Virginia, United States of America.
3. Procedural History
A Complaint was submitted to the World Intellectual Property Organization Arbitration and Mediation Center (the "WIPO Center") on February 15, 2001, in electronic form. The hard copy version of the Complaint was received by the WIPO Center on February 19, 2001. The WIPO Center acknowledged receipt of the Complaint on February 22, 2001.
On February 23, 2001, a Request for Registrar Verification was transmitted to NSI. NSI replied on February 27, 2001.
A Formal Requirements Compliance Checklist was initiated by the assigned WIPO Center Case Administrator and completed on March 1, 2001. The Panelist has independently reviewed the Requirements and agrees with the assessment of the WIPO Center Case Administrator that the Complainant is in formal compliance with the requirements of the Rules for Uniform Domain Name Dispute Resolution Policy ("Rules") and the WIPO Supplemental Rules for Uniform Domain Dispute Resolution Policy, in effect as of December 1, 1999 (the "WIPO Supplemental Rules"). The fees for a single-member Panel were paid by the Complainant on time and in the required amount.
No formal deficiencies having been recorded, on March 1, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification") was transmitted to the Respondent (with copies to the Complainant, NSI and ICANN), setting a deadline of March 20, 2001, by which the Respondent could file a Response to the Complaint. The Commencement Notification was transmitted to the Respondent by e-mail to the e-mail addresses indicated in the Complaint and specified in NSI�s Whois confirmation, by post/courier to the indicated postal address and by facsimile to the indicated facsimile number. Having reviewed the communications records in the case file, the Panelist finds that the WIPO Center has discharged its responsibility under Paragraph 2(a), Rules, "to employ reasonably available means calculated to achieve actual notice to Respondent."
On March 22, 2001, having received no Response from the designated Respondent, the WIPO Center transmitted to the parties a Notification of Respondent Default using the same contact details and methods as were used for the Commencement Notification.
On March 29, 2001, the WIPO Center invited Richard Allan Horning to serve as the Sole Panelist in Case No. D2001-0251, and transmitted to him a Statement of Acceptance and Request for Declaration of Impartiality and Independence. Richard Allan Horning�s Statement of Acceptance and Declaration of Impartiality and Independence was received on March 29, 2001. On April 2, 2001, the WIPO Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Richard Allan Horning was formally appointed as the Sole Panelist. The Projected Decision Date was April 16, 2001.
The Panelist finds that the Administrative Panel was properly constituted and appointed in accordance with the Policy, Rules and WIPO Supplemental Rules.
The Panelist shall issue his Decision based on the Complaint, the Policy, the Rules, the WIPO Supplemental Rules, and without the benefit of any Response from Respondent.
4. Factual Background
Complainant is the owner of record of various U.S. trademarks, which it has used in connection with the operation of a mortgage origination service business since April 2000. The Complainant has provided evidence of the registration of the following marks, which have been adopted and used in this regard:
A.
LOANWORKS
Registration Number:
Goods & Services:
First Use:
US PTO 2,238,058
Class 36 for financial services, namely mortgage lending and banking services.
April 20, 1997
B.
LOANWORKS [DESIGN]
Registration Number:
Goods & Services:
First Use:
US PTO 2,238,162
Class 36 for financial services, namely mortgage lending and banking services.
April 20, 1997
C.
LOANWORKS [DESIGN]
Registration Number:
Goods & Services:
First Use:
US PTO 2,238,211
Class 36 for financial services, namely mortgage lending and banking services.
April 20, 1997
D.
LOANWORKS.COM
Registration Number:
Goods & Services:
First Use:
US PTO 2,341,182
Class 36 for financial services, namely mortgage lending and banking services available through a global computer network.
May 11, 1999
Complaint, Annexes 3, 4.
The Complainant registered the domain name on April 2, 1997, (Complaint, Annex A).
At the time of the initiation of the proceedings the , , and websites registered by Respondent resolved to a Great D site where each of the domains was listed for sale.
5. Parties� Contentions
A. Complainant
Complainant contends that Respondent has registered a domain name which is nearly identical to and confusingly similar to the service marks and trademarks registered and used by Complainant, that Respondent has no rights or legitimate interests in respect to the domain name at issue, and that Respondent has registered and is using the domain names at issue in bad faith.
B. Respondent
Respondent has not contested the allegations of the Complainant.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panelist as to the principles the Panelist is to use in determining the dispute: "A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
1) that the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and,
2) that the Respondent has no rights or legitimate interests in respect of the domain name; and,
3) that the domain name has been registered and is being used in bad faith.
The domain name at issue is either identical (Hewlett-Packard Company v. Cupcake City, NAF Case No. NAF0002000093562; America Online, Inc.v. Avrasya Yayincilik Danismanlik Ltd., NAF Case No. FA0002000093679) or confusingly similar (Marriott International, Inc. v. John Marriot, NAF Case No. FA 0002000094737; Identigene, Inc. v. Genetest Laboratories, WIPO Case No. D2000-1100; Seiko Epson Corporation v. Distribution Purchasing & Logistics Corp., NAF Case 0003000094219) to Complainant�s mark.
Complainant has alleged and Respondent has failed to deny that Respondent has no legitimate interests in respect of the domain name at issue. Alcoholics Anonymous World Services, Inc. v. Raymond, WIPO Case No. D2000-007; Bronson Plc v. Unimetal Sanayai ve Tic. A.S., WIPO Case No. D2000-0011.
The question thus arises whether the domain name at issue has been registered and is being used in bad faith. Paragraph 4.b of the Policy sets forth "in particular but without limitation" circumstances which "shall be evidence of registration and use of a domain name in bad faith." Those circumstances are:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the Complainant�s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.
Complainant has alleged and the Panelist finds that Respondent�s use of the domain names at issue, to resolve to a website where they are offered for sale constitutes bad faith registration and use under the Policy. Policy, Paragraph 4(b)(iv); America Online, Inc. v. DomainN, NAF Case No. FA 0002000093766; W, Inc. v. Alison Hammersla, WIPO Case No. D2000-1222.
7. Decision
For all of the foregoing reasons, the Panelist decides that the domain names registered by Respondent are identical or confusingly similar to the trademarks and service marks in which the Complainant has rights, that Respondent has no rights or legitimate interests in respect of the domain names, and that the Respondent�s domain names have been registered and are being used in bad faith.
Accordingly, pursuant to Paragraph 4(i) of the Policy, the Panelist requires that the registration of the domain names , , and be transferred to the Complainant.
Richard Allan Horning
Sole Panelist
Dated: April 12, 2001
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